Marty Lederman at Balkanization thinks it may be fruitless to get a special counsel appointed to investigate Bush's warrantless NSA electronic surveillance program. But, he has another possible solution:

My friend David Barron has come up with the simple but ingenious idea that Congress should vote for a statute that would confer statutory standing on certain persons to file a cause of action in federal court seeking declaratory relief that the NSA program is unlawful -- say, for example, persons who have a reasonable basis for claiming that they are chilled by the spying program because their employment regularly requires them to make overseas calls in connection with academic or journalistic work related to the war on terrorism.

That way, the Supreme Court could resolve the question. Of course, the President could veto such a bill. But I think there'd be some chance of an override (see, e.g., the overwhelming majorities for the McCain Amendment); and, in any event, presumably such a veto would be politically dicey.

There's more at David Barron's blog, Law and Culture.